Attorney General's Opinion

Attorney General, Richard Blumenthal

June1, 2007

The Honorable Susan B. Bysiewicz

Secretary of the State

30 Trinity St., PO Box 150470

Hartford, CT 06115-0470

 Dear Secretary Bysiewicz:

         You have asked for a formal opinion as to whether Connecticut's "Voter's Bill of Rights" requires municipalities to provide a voting system accessible to the physically disabled in each polling place in non-federal elections, including elections held this year.  You also ask whether municipalities must utilize the vote-by-phone voting systems purchased by the state and used in each polling place during the federal elections held in November, 2006.

We conclude that the "Voter's Bill of Rights," in particular Conn. Gen. Stat. § 9-236b(a)(9), grants disabled voters the right to vote privately and independently, and requires all polling places to provide a voting system that provides such private and independent access by physically disabled voters. You have the authority under Conn. Gen. Stat. § 9-238(b) to determine whether any particular voting system complies with state law.  We understand that you have already approved the vote-by-phone system as satisfying the state's legal requirements under the "Voter's Bill of Rights."  Using other machines or systems may be legally permissible, but municipal officials must obtain your approval of such machines or systems prior to their use in an election.

          Section 9-236b of the General Statutes, originally passed in 2002, establishes a “Voter’s Bill of Rights,” which contains a list of certain enumerated rights for each voter in this state.  Public Act 04-32 amended the Voter’s Bill of Rights to add, inter alia, the right “to vote independently and in privacy at a polling place, regardless of physical disability.”  This addition, now codified at Conn. Gen. Stat. § 9-236b(a)(9), was adopted without substantial debate or comment concerning its precise scope or meaning.  Of relevance on this point is Representative O’Rourke’s statement at the time of passage that Public Act 04-32 was passed to bring Connecticut election law in line with certain aspects of the federal Help America Vote Act, Public Law 107-252 (2002)(“HAVA”), which is applicable to federal elections:

We are, in this bill before us, adding a couple of new provisions to that list of rights since the passage of the Help America Vote Act, … [including] the right to vote independently and privately in the polling place regardless of any physical disability they may have.

Comments of Rep. O’Rourke, House Session Transcript, March 31, 2004 (emphasis added).  

          The language in the Voter’s Bill of Rights concerning private and independent voting substantially mirrors § 301(a)(3)(A) of HAVA, which requires that any voting system used in a federal election “be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.”  This requirement may be satisfied “through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.”  Id. at § 301(a)(3)(B).  Federal officials approved, and the state of Connecticut purchased, the vote-by-phone system for use in each polling place to satisfy § 301(a)(3)(A) of HAVA in the November 2006 federal election.

          As is clear from the plain language of Conn. Gen. Stat. § 9-236b(a)(9), as well as the cited legislative history, the legislature intended to ensure that physically disabled voters be provided with the same level of accessibility in voting in non-federal elections that they have under HAVA in federal elections. Therefore, we conclude that each polling place in the state must provide a voting system that comports with the requirements of  § 9-236b(a)(9) in the non-federal elections to be held this year.¹

          Although the Voter’s Bill of Rights clearly requires that some provision be made to permit disabled voters to vote privately and independently, the determination whether any particular voting system comports with that requirement is beyond my authority to make.  Conn. Gen. Stat. § 9-238(b) gives you as Secretary of the State the power to evaluate the sufficiency and suitability of any voting system to be used in this state.  Section 9-238(b) provides as follows:

“After October 1, 1970, no voting machine manufactured prior to January 1, 1927, shall be used at any election in this state and no voting machine manufactured after said date shall be used in an election, which voting machine, in the opinion of the Secretary of State, does not conform to the requirements of law or is unsuitable for use in such election.”

Conn. Gen. Stat. § 9-238(b); see also Conn. Gen. Stat. §§ 9-241 and 9-242 (providing for the Secretary of the State's approval of voting systems submitted by manufacturers for review and establishing certain standards for such approval).  Based on these provisions, you have authority to determine whether a voting system is sufficient and suitable to permit private and independent voting as required by the Voter's Bill of Rights.  Our understanding is that you have already approved the vote-by-phone system as satisfying this requirement.  Alternative machines or systems may be permissible, and can be considered by municipal voting officials, but they would have to obtain your approval before using such alternatives in the election.

          In conversations with this Office, you asked what enforcement mechanisms are available in the event that a municipality fails to comply with this requirement.  A violation of the Voter's Bill of Rights is enforced by the State Elections Enforcement Commission (SEEC).  Section 9-236b(a) of the General Statutes, establishing the Voter’s Bill of Rights provides:  “If any of your rights have been violated, you have the right to file an official complaint with the State Elections Enforcement Commission.”

          The SEEC is empowered to investigate and punish violations of any provision of state election law, including a violation of the Voter's Bill of Rights.  Such an investigation may be commenced on the SEEC’s own initiative, in response to a statement filed by the Secretary of the State or any town clerk, or upon a written sworn complaint by any individual.  See Conn. Gen. Stat. § 9-7b(a)(1).  Thus, in the event that a municipality fails to provide for private and independent voting in violation of the Voter’s Bill of Rights or seeks to employ a voting system that you have not approved, you have the authority to refer the matter to the SEEC.   

          If necessary, the SEEC may request that this office seek an injunctive order in the Superior Court directly restraining or remedying a violation of any provision of the Voter’s Bill of Rights. See § 9-7b (detailing SEEC’s powers and duties) and Regs. of Conn. State Agencies at § 9-7b-46(c)(detailing the types of orders that the SEEC is empowered to issue); see also Conn. Gen. Stat. §§ 9-7b(a)(8) and (9).²

         

          I trust that this responds to your concerns.  Please do not hesitate to contact me if I can be of further assistance on this or any other matter.

Very truly yours,

RICHARD BLUMENTHAL

                                                              ATTORNEY GENERAL

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